Exhibit 10.79

CONFIDENTIAL

TCBY SYSTEMS, LLC

Distribution Service Agreement

with Lincoln Poultry and Egg Company

January 15, 2007

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DISTRIBUTION AGREEMENT

THIS AGREEMENT is made and entered into as of the 15th day of January, 2007, by and between TCBY SYSTEMS, LLC, a Delaware limited liability company (“COMPANY”) and LINCOLN POULTRY AND EGG COMPANY, a Nebraska Corporation (“DISTRIBUTOR”). DISTRIBUTOR will commence distribution services under this Agreement on March 26, 2007 (the “Effective Date”) unless otherwise mutually agreed upon by the parties.

RECITALS

A .             The COMPANY is engaged in the worldwide business of franchising or licensing retail TCBY Stores and other related concepts (“Franchised Stores”). COMPANY also has several COMPANY-owned stores that it supports directly (“Company Stores”). The Franchised Stores and or individual franchisees (the “Franchisees”) function as independent companies and are individually and solely responsible for the activities at each location, including purchasing needed products and supplies, which includes responsibility for purchasing from DISTRIBUTOR. COMPANY is responsible for activities at its Company Stores. Company Stores and Franchised Stores are jointly referred to herein as “Stores”, the Franchisees and individuals responsible for Company Stores are jointly referred to as (“Operators”) and the combined efforts of the COMPANY and its Franchisees is referred to as the “System”. COMPANY takes steps to assist Stores to meet its purchasing needs and has the right to designate distributors and suppliers for the System.

B.             The DISTRIBUTOR is engaged in the business of purchasing, selling, distributing and delivering food service products (including the Products, as defined below). In connection therewith, the DISTRIBUTOR manages, controls, prepares and furnishes reports to its customers concerning the inventories of products and supplies the DISTRIBUTOR purchases, manages and controls for sale, distribution and delivery to its customers.

C.             COMPANY wishes to appoint DISTRIBUTOR as a distributor of certain approved proprietary food and related products to the Stores located within the Territory (as defined below), and DISTRIBUTOR wishes to accept such appointment, all on the terms and conditions hereinafter set forth.

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AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1.              Appointment - Subject to all terms and conditions of this Agreement, COMPANY hereby appoints DISTRIBUTOR as a distributor of the products within the product categories listed in Schedule 1 (the “Products”), to the Stores in the territory serviced by DISTRIBUTOR’s distribution center located in Lincoln, Nebraska (the “Territory”) as reflected in the map depicted in Schedule 2 and DISTRIBUTOR hereby accepts such appointment. This Territory includes the entire state of Iowa; the portions of the states of North Dakota, South Dakota and Nebraska east of US Highway 83 but including the cities of Minot and Bismarck, North Dakota, Pierre, South Dakota and North Platte, Nebraska; the portion of the state of Minnesota south of US Highway 12 but including the greater metropolitan areas of Minneapolis and St. Paul Minnesota and the city of Quincy, Illinois. Subject to Section 2.02, COMPANY may appoint DISTRIBUTOR as a distributor of Products to Stores outside of the Territory and DISTRIBUTOR may agree to such designation.

2.              Distribution of Products

2.01         Products - DISTRIBUTOR will maintain in its inventory of Products the following: (i) Products designated by COMPANY that contain the proprietary trademarks, service marks, logos or labels of COMPANY or any of its affiliates or that are made pursuant to specifications provided by COMPANY, its affiliates, or licensors for limited distribution to Operators (defined below) or other entities licensed by COMPANY, its affiliates or licensors (“TCBY Branded Products”), and (ii) other supplies or other national or regional branded Products designated or contracted for by COMPANY to be maintained in inventory by DISTRIBUTOR for distribution to COMPANY, its affiliates and the Operators. (Collectively, Products described in clauses (i) and (ii) are referred to as “Proprietary Products”). DISTRIBUTOR will also maintain in its inventory non-proprietary Products which DISTRIBUTOR stocks in its inventory for sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not be required to maintain more than two hundred (200) Proprietary Products in inventory at any time. All Coca Cola Products carried for COMPANY shall be excluded from the calculation of the number of Proprietary Products.

2.02         Approved Operators - DISTRIBUTOR shall sell and deliver to Franchisees and Operators of Stores approved by COMPANY and located within the Territory such quantities of the Products

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(subject to minimum Product order requirements) as the Operators may order from time to time during the term of this Agreement. DISTRIBUTOR shall cease selling TCBY Branded Products to any Operator not later than three (3) days following receipt of written notice from COMPANY advising DISTRIBUTOR that such Operator is no longer approved by COMPANY and shall, within such timeframe, further cease selling, under the terms of any supplier agreement negotiated by COMPANY, all Proprietary Products to such Operators referenced in such notice. In addition, DISTRIBUTOR shall have the right to cease the sale and distribution of Products to any Operator (a) who is in default of its obligations to DISTRIBUTOR, provided that DISTRIBUTOR has given COMPANY at least three (3) business days notice of such default before ceasing deliveries to such Operator, or (b) who has filed a voluntary petition in bankruptcy or under any other similar insolvency or debtor relief law or who has had such a petition filed against it, or who has made a general assignment for the benefit of its creditors. COMPANY shall also have the right to reinstate delivery to any Operator that COMPANY previously stopped selling by providing written notice to DISTRIBUTOR and DISTRIBUTOR shall provide such delivery as soon as mutually agreed between the parties.

A list of the present Operators with Stores located within the Territory and approved by COMPANY and their respective Store locations is attached hereto as Schedule 3 . During the term of this Agreement, COMPANY shall maintain and provide to DISTRIBUTOR a current list of all Operators with Stores within the Territory who have been approved by COMPANY for distribution of the Products under this Agreement. DISTRIBUTOR shall have the right to rely upon such list, as amended or modified by COMPANY in writing from time to time, in performing its obligations under this Agreement. COMPANY shall notify DISTRIBUTOR of new Stores within the Territory not less than fourteen (14) days prior to the desired date of first shipment of Products to any such new Stores. In addition, provided and to the extent that COMPANY and DISTRIBUTOR mutually agree in writing, DISTRIBUTOR shall provide distribution services to Stores located outside the Territory, as designated by COMPANY.

COMPANY represents and warrants that the terms of this Agreement, as and if amended in the manner permitted under this Agreement, are binding upon and shall govern DISTRIBUTOR and COMPANY’s obligations with respect to distribution services performed by DISTRIBUTOR hereunder and that each Franchisee that is an owner or operator of a Franchised Store within the System shall be bound by the terms of this Agreement, as it may hereafter be amended, upon such Operator’s purchase of Proprietary Products from DISTRIBUTOR.

2.03         Product Orders - All Product orders shall be submitted by the Operators to DISTRIBUTOR and shall specify the location of the Operator’s Stores, the type of Product, and the quantity desired.

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Operators may place orders electronically (“Electronic Orders”) or by telephoning or faxing DISTRIBUTOR’s customer service center in accordance with the guidelines detailed below. All shipment expenses from DISTRIBUTOR’s distribution center to the Operator’s location shall be at DISTRIBUTOR’s expense unless otherwise noted elsewhere in this Agreement. Product order guides will be provided by DISTRIBUTOR to the Operators monthly via DISTRIBUTOR’s website and with a hard copy delivered to each Store, with availability of such order guides to be made prior to the beginning of the month, but only after review and approval of the order guide by COMPANY. The order guides will be organized by Product categories and will include, among other things, the Product Sell Price (as defined herein), Product units and new Products. DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”) of each Product, which will be common throughout its entire distribution system and will be used on all documents such as order guides, invoices, monthly reports, etc. SKU’s, and, accordingly, the assigned product code number, must differ for equivalent Products supplied by different suppliers. DISTRIBUTOR will utilize the existing TCBY product item numbers. Only Products approved for sale to its Operators by the COMPANY will be listed on this order guide. Electronic Orders will be placed via internet using DISTRIBUTOR’s web-site. All Electronic Orders are subject to the standard order cut-off time of 4:00 p.m. local time, two (2) days prior to their scheduled delivery day. Operators will have until 5:00 p.m. local time, two (2) days before their order shipping day to modify or add-on to their order. Orders not placed electronically may be subject to earlier cut-off times than those established above as mutually agreed upon between COMPANY and DISTRIBUTOR. Operators will be notified prior to 10:00 a.m. the day after their order cut-off if a product is expected to be out of stock so that an alternative may be ordered, subject to the provisions of Section 3.02. Notwithstanding the foregoing, Stores that have a scheduled delivery day of Monday, must have their orders placed by 12:00 p.m. local time, on the preceding Saturday and Stores that have a scheduled delivery day of Tuesday must have their orders placed by 12:00 p.m. local time, on the preceding Sunday.

DISTRIBUTOR may schedule deliveries at any time and day of the week. However, where reasonably possible, DISTRIBUTOR will schedule ordering days and delivery days that are mutually agreed upon by and between DISTRIBUTOR and each Operator and will provide notice to the affected Operator at least fourteen (14) days before routing changes. On an exception basis, DISTRIBUTOR will consider shortening the permissible time frames for scheduled deliveries for those Operators that, given unique and compelling business needs, require the same.

2.04         Deliveries. Delivery vehicles used by DISTRIBUTOR will only display the marks of DISTRIBUTOR, except for locations that cannot accommodate delivery by DISTRIBUTOR’S

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existing tractor trailers or in the instances where recovery deliveries are made by outside services or DISTRIBUTOR has the need for temporary short term rental equipment.

DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled to be made during the period running from one (1) hour or more after the retail closing time of the Store to deliveries one (1) hour or more before the retail opening time of the Store), an overall average of 90% of all regularly scheduled deliveries will be made within a two (2) hour window, meaning no earlier than one (1) hour before and no later than one (1) hour after the scheduled delivery time. If a delivery is anticipated to fall outside of this two (2) hour window, DISTRIBUTOR will immediately notify the Operator. DISTRIBUTOR will provide an inside delivery to each Operator in accordance with Company’s temperature store requirements as detailed in Section 4.09, placing refrigerated and frozen Products into their appropriate storage areas, but will not be responsible for stocking shelves or rotating inventories.

All invoices for deliveries made during Store’s business hours will be signed for by the Store’s store manager or other representative prior to DISTRIBUTOR’s driver leaving the Store (provided that the driver is not unreasonably delayed). Copies of invoices for deliveries made after the Store’s regular business hours will be left at the Store.

The COMPANY agrees to use its commercially reasonable efforts to cause Operators to provide keys and security codes for night deliveries where necessary. In the event Operator refuses to provide keys and security codes, Operator will promptly meet the delivery driver at the scheduled appointment time or at such other time as Operator has been notified in the event of a late delivery. If the Operator fails to meet the DISTRIBUTOR delivery at the appropriate time on more than one occasion, the Operator shall be responsible for payment of a penalty fee of [CONFIDENTIAL] (1) to DISTRIBUTOR for subsequent occurrences. In the event of a Product shortage or delivery problem that occurs during an unattended delivery, the authorized representative of the Stores will contact the distribution center no later than the first Notification Deadline following such unattended delivery. The “Notification Deadline” is 4:00 p.m. local time each day for the affected Stores.

2.05         Delivery Frequency/Routing - DISTRIBUTOR will provide each Operator with a minimum delivery frequency based on annual case volume as shown below as long as the Operator meets the minimum order requirements set forth in Section 5 hereof:

(1)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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This schedule is intended to serve as a guideline only and DISTRIBUTOR agrees to provide additional regular deliveries as requested by Operator and approved by COMPANY in writing. COMPANY will provide DISTRIBUTOR with the initial delivery frequency for each Store in Schedule 3 . COMPANY and DISTRIBUTOR will mutually agree on the exact date for routing changes from summer to winter and winter to summer but each period will be approximately six (6) months with summer routing from April through September and winter routing from October through March.

In the event an emergency delivery is required based upon the Operator’s needs and not due to a delivery error by DISTRIBUTOR nor during the time periods specified in Section 2.06, DISTRIBUTOR will accommodate the Operator’s request with the most efficient available delivery method. All additional freight expense will be at the Operator’s expense and will be billed upon DISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR is able to schedule such an emergency delivery in conjunction with a nearby route, the additional freight expense will be [CONFIDENTIAL] (2). Where possible, a store may order up to [CONFIDENTIAL] (3) cases to be delivered to a nearby store, on that store’s delivery day (and with that store’s consent) without an additional charge. Products delivered to a nearby store will be billed on a separate invoice.

Should the need arise for an emergency or special delivery due to supplier error, DISTRIBUTOR and COMPANY will work with the supplier to remedy the shortage at the supplier’s expense. If supplier fails to pay the additional freight expense, COMPANY will be required to do so provided DISTRIBUTOR notifies COMPANY immediately of supplier non-performance. If an emergency delivery is necessary due to DISTRIBUTOR error, DISTRIBUTOR will arrange a special delivery with any additional freight to be paid by DISTRIBUTOR.

(2)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(3)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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DISTRIBUTOR will arrange its routes to insure that its delivery trucks will be in all markets (SMSA’s of at least 250,000 population) within each Territory at least twice a week where at least twenty-five (25) Stores serviced by DISTRIBUTOR under this Agreement are located.

2.06         Special Deliveries During Roll-Out and New Operator Openings - DISTRIBUTOR and COMPANY recognize that during the initial roll-out phase of the DISTRIBUTOR distribution program, many new processes will be in place for each of COMPANY, the Operators and DISTRIBUTOR, including changes in the way the Operators order, the distance from the DISTRIBUTOR distribution center to the Operators, and lead times from order day to delivery day for the Operators. Therefore, DISTRIBUTOR will process emergency orders for all Operators for the first thirty (30) days following the commencement of distribution service at no additional charge, subject to the minimum order requirements and applicable handling fees, if any, as set forth in Section 5 of this Agreement.

2.07         Return of Products/Credits – Any Products ordered by Operators which are returned to DISTRIBUTOR for any reason must be returned no later than the next regularly scheduled delivery (except that, in the case of Products to be returned as a result of concealed damage, within the remaining shelf life of such Products) and all claims for Products to be returned must be made either to the driver upon check-in of the order, by telephone by 4 p.m. on the day of delivery following receipt of the Products if an unattended delivery or, in the case of concealed damage, within twenty-four (24) hours of discovery of concealed damage by the Operator. All returned items must be in unmarked original packaging and must be in suitable condition for resale (unless damaged or mis-marked Product was the reason for the return). Subject to the foregoing, DISTRIBUTOR shall provide credit to the affected Operator for defective, shorted or damaged Products within twenty-four (24) hours of the driver’s return if brought to the driver’s attention or noticed by the driver during delivery or, in any event, within forty-eight (48) hours of DISTRIBUTOR’s receipt of the Operator’s claim of damaged, shorted or defective Products (or receipt of product, if warranted) and will immediately provide documentation to the Operator of such credit via fax or email as requested by the Operator. Notwithstanding the foregoing, no returns will be permitted for cooler or freezer items, or fresh produce due to misorder by the Operator. Products refused by Operator at time of delivery for reasons other than damage or remaining shelf life below agreed upon parameters will be subject to a [CONFIDENTIAL] (4) restocking charge to be paid by Operator. In the event that the shorted, defective or damaged Product is a Kill Item, then DISTRIBUTOR will remedy the situation in accordance with Section 3.02 if so requested by the Operator.

(4)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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2.08         Limited Time Offers (“LTO’s”) - In order to allow DISTRIBUTOR to maintain service levels to the Operators, COMPANY will provide DISTRIBUTOR with at least twenty-eight (28) days prior written notice of any and all LTO’s to be run by COMPANY (subject to availability of LTO Products from the supplier within the twenty-eight (28) day period). Such written notices shall include estimated usage for the Products to be promoted if such usage is expected to deviate materially from historical levels or if a new Product. Subject to the above, DISTRIBUTOR agrees to stock sufficient inventory for any new Proprietary Products to be used in national LTO promotions and other key items, as reasonably requested by COMPANY. Unless retained on the Operator’s menu at the instruction of the COMPANY or mutually agreed to between COMPANY and DISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTOR distribution centers no later than sixty (60) days after the completion of the LTO and COMPANY shall purchase all remaining inventory of such LTO as provided in Section 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTO Products may not be returned to DISTRIBUTOR, unless the return is necessitated due to a DISTRIBUTOR error or due to Product damage not caused by the Operator.

3.              Suppliers of Products; Inventory of Products.

3.01         Suppliers/Contracted Products - The Proprietary Products to be distributed to the Operators under the terms and conditions of this Agreement shall be purchased by DISTRIBUTOR, on its own account, from the suppliers (including COMPANY) selected by COMPANY, pursuant to terms and conditions as are agreed upon by and between DISTRIBUTOR and such suppliers (including COMPANY). In the event COMPANY enters into direct contracts with suppliers, the terms and conditions of such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTOR for its business and legal review and, if the business and legal terms of the proposed contract that apply to DISTRIBUTOR are reasonably acceptable to DISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteed supplier price provided under such supplier contract (net of billbacks by DISTRIBUTOR, if any), plus applicable freight if the supplier price is not a delivered price, [CONFIDENTIAL] (5) Products governed by such supplier contracts negotiated by COMPANY are referred to herein as “Contracted Products.” The freight charges for Contracted Products will be an amount negotiated with the supplier by COMPANY. DISTRIBUTOR agrees that Cost for any Contracted Products will not include any unloading costs for palletized and slipsheet loads.

(5)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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3.02         Inventory - During the term of this Agreement, DISTRIBUTOR shall maintain an inventory of the Products in quantities necessary to provide the Operators with an adequate supply of such Products based upon initial usage projections by COMPANY, future historical usage of such Products by the Operators, and the fill rate performance requirements detailed below. DISTRIBUTOR agrees to work with COMPANY, to attempt to maximize the quantities of Products purchased to efficiently reduce the cost of Products purchased, and to maximize Product inventory turns. In addition, DISTRIBUTOR agrees to order Products in the quantities indicated on the inbound quantity matrix attached hereto as Schedule 5, as amended by COMPANY to reflect the growth in the number of Stores serviced by DISTRIBUTOR in the Territory from time to time. To further insure DISTRIBUTOR’s ability to comply with the performance requirements detailed later in this Section 3.02, DISTRIBUTOR will also maintain “safety stock” of not less than [CONFIDENTIAL] (6) days historical usage for all Proprietary Products and will also have an additional [CONFIDENTIAL] (7) days historical usage of white chocolate mousse, chocolate and vanilla frozen yogurt on the road at all times. DISTRIBUTOR agrees that all Products delivered to Operators will have at least one-third of their original shelf-life remaining as of the date of delivery.

COMPANY categorizes Products into three classes:

Proprietary Products that Operators must have (“Kill Items”), which Kill Items will not number more than [CONFIDENTIAL] (8) at any time, excluding beverage Products and LTO items. COMPANY will provide a list of Kill Items to DISTRIBUTOR, which list will be updated by COMPANY from time-to-time. The initial list of Kill Items is attached as Schedule 4 .

Other Proprietary Products that can be substituted in an emergency.

Non-proprietary Products, including, any produce items that DISTRIBUTOR may agree to provide.

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnight emergency delivery, if requested, an overall aggregate “fill rate” for all Products of [CONFIDENTIAL] (9), and at least [CONFIDENTIAL] (10) of all invoices issued by DISTRIBUTOR to the Operators will be

(6)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(7)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(8)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(9)       Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(10)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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completely accurate at the time of initial issuance, with all of the above measured quarterly. The “fill rate” equals the percentage of Products or Kill Items, as the case may be, obtained by dividing the total number of Products or Kill Items shipped by DISTRIBUTOR and received by the Operators at the time of delivery for the month, by the total number of Product or Kill Items ordered by the Operators from the DISTRIBUTOR for that same month. All fill rate measurements (and invoice accuracy requirements) will be net of supplier-related issues such as shortages and delayed deliveries to DISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event of supplier non-performance. If emergency delivery is required due to supplier (including COMPANY) error, costs of emergency delivery shall be at supplier (including COMPANY) expense, provided that, if the supplier fails to absorb such expense, such delivery costs shall be paid by the Operator provided DISTRIBUTOR has notified COMPANY immediately in the event of such non-performance and Operator has approved the additional expense in advance. If the emergency delivery is due to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in as efficient manner as possible, which may include emergency deliveries and special freight shipments, at DISTRIBUTOR’S sole expense. If the emergency delivery is due to Operator error, the Operator shall pay delivery costs for such emergency delivery. From the moment of receipt of the Products for storage by DISTRIBUTOR until the Products have been accepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss or damage with respect thereto, shall be directly liable to COMPANY for any such loss or damage to the Products and the related costs and expenses for replacing the Products and agrees to obtain and maintain adequate insurance coverage to insure against such loss or damage.

In the event of substitution of a Proprietary Product, the substituted Product must have been previously approved by COMPANY in writing and, if the need for substitution was caused due to DISTRIBUTOR error, the price of the substituted Product will be determined based on the lower of the Cost (as hereinafter defined) of the substituted Product or the Cost of the out-of-stock Product that it replaces. In addition, DISTRIBUTOR will reimburse COMPANY to the extent that COMPANY would have realized a difference between its selling price to DISTRIBUTOR and the amount that COMPANY would have paid for the Proprietary Product from its supplier, unless the substitution is due to COMPANY’s error. Upon request, COMPANY shall provide to DISTRIBUTOR copies of invoices and other documentation reasonably necessary to verify the amount of the difference claimed by COMPANY. If substitution is due to supplier (including COMPANY) error, then COMPANY shall cause supplier to, or if COMPANY is the supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable losses sustained due to such error.

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To the extent that DISTRIBUTOR is unable to sell to the Operators quantities of the Proprietary Products in DISTRIBUTOR’s inventory for any reason whatsoever, including, but not limited to, Product discontinuation, slow-moving inventory, unused LTO Products, promotional or seasonal Products or exceeded shelf life due to sudden decline in Product movement and not due to DISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase, all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost, F.O.B. the DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling and carrying charges, if properly approved by COMPANY in advance as outlined below. In such event, COMPANY will purchase or cause to be purchased all perishable Proprietary Products within [CONFIDENTIAL] (11) days after notice from DISTRIBUTOR or by the expiration date of the Proprietary Products, whichever is earlier, and all nonperishable Proprietary Products within [CONFIDENTIAL] (12) days after notice from DISTRIBUTOR. In addition, if the inventory re-purchase is necessitated for any reason other than DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR all reasonable out-of-pocket costs and expenses (not to exceed an amount equal to [CONFIDENTIAL] (13) of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S prior written consent) incurred by DISTRIBUTOR in selling, returning or otherwise disposing of such Products. DISTRIBUTOR shall provide COMPANY with documentation or other proof that any such costs and expenses were incurred by DISTRIBUTOR. In order to allow COMPANY to monitor the supply and usage of the Proprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsolete and slow-moving inventory report.

3.03         Aged Inventory Notification - DISTRIBUTOR will immediately notify COMPANY in writing in the event that any quantities of its Proprietary Products are within [CONFIDENTIAL] (14) days of expiration of product life. If DISTRIBUTOR fails to do so, COMPANY shall not be required to comply with the requirements set forth in Section 3.02.

3.04         Present DISTRIBUTOR’s Inventory - DISTRIBUTOR agrees to purchase the existing merchantable and saleable inventory of Proprietary Products from COMPANY’S present distributor located in Alsip, Illinois in quantities not to exceed a [CONFIDENTIAL] (15) days’ supply of such Products, in the aggregate, provided that DISTRIBUTOR and COMPANY have been given an opportunity by the present distributor to inspect any such Product prior to purchase pursuant to this Section 3.04. DISTRIBUTOR will pay, via check, the present distributor for

(11)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(12)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(13)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(14)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(15)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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Products purchased from it, within ten (10) days of the later of DISTRIBUTOR’S receipt of the Products or the receipt of the invoice approved by COMPANY for the Products. DISTRIBUTOR shall be responsible for all freight and unloading costs associated with transporting such inventory from the existing DISTRIBUTOR’s locations listed above. DISTRIBUTOR will not be responsible for any handling or other fees charged by the current distributor in connection with DISTRIBUTOR’s loading and transferring of such inventory. COMPANY and the current distributor will be required to provide all reasonable assistance and cooperation to DISTRIBUTOR in connection with the purchase, loading and transportation of such inventory from the current distributor to the DISTRIBUTOR distribution center, including the scheduling of mutually agreeable inventory inspection and pick-up times.

In the event that the Cost of the Product, as purchased from the existing distributor, exceeds or is less than the Cost that DISTRIBUTOR would otherwise utilize in determining the Sell Price for such Products obtained through suppliers, including COMPANY, DISTRIBUTOR shall utilize the Cost designated by COMPANY in determining the Sell Price and shall invoice, pay to COMPANY or charge the Operator, as directed by the COMPANY, in the amount of the difference. In the event COMPANY directs DISTRIBUTOR to invoice the COMPANY, COMPANY shall pay such invoiced amount within [CONFIDENTIAL] (16) days of the date of the invoice. In the case of a rebate to COMPANY, DISTRIBUTOR shall pay the rebated amount within [CONFIDENTIAL] (17) days of its determination of the amount to be rebated.

4.              Sell Price/Payment Terms/Financial Reporting

4.01         Sell Price - Beginning on the Effective Date and throughout the entire term of this Agreement, the maximum purchase price at which DISTRIBUTOR shall sell the Products, (the “Sell Price”), to the Operators shall be determined by adding the “Cost” (as hereinafter defined) of the Product plus [CONFIDENTIAL] (18) per case for all deliveries (collectively, “Markup”), subject to the other provisions of this Agreement. For purposes of this Agreement, the “Cost” of a Product other than a Contracted Product shall be the sum of (a) the cost of the Product as shown on the invoices to DISTRIBUTOR from the respective supplier, including COMPANY, plus (b) if the invoiced cost of the Product is not a delivered price, the applicable freight charges related to shipping the Product from the supplier to DISTRIBUTOR’S distribution center and, if applicable, the inter-branch freight cost detailed in Section 3.02, plus (c) the Sourcing Fees (as later defined in Section 4.06), if any, attributable to the Product, less (d) promotional allowances reflected on supplier invoices to DISTRIBUTOR. Applicable freight, in those cases where the

(16)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(17)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(18)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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invoice cost to DISTRIBUTOR for non-proprietary Products is not a delivered cost, means that DISTRIBUTOR has added a reasonable freight charge, agreed to in advance and in writing by COMPANY for delivering such non-proprietary Products from suppliers to DISTRIBUTOR. Applicable freight for any non-proprietary Product will not exceed the rate charged by nationally recognized carriers operating in the same market for the same type of freight service. Cost for any non-proprietary Product will not be reduced by discounts for cash or prompt payment available to DISTRIBUTOR, breakage allowances or by backhaul revenue. Fuel or other transportation surcharges indicated on the manufacturer’s or supplier’s invoice or on freight invoices will increase Cost. The Cost of a Contracted Product shall be determined in accordance with Section 3.01. In no event will the Cost of Contracted Products include amounts to be rebated to DISTRIBUTOR and therefore, DISTRIBUTOR will not negotiate off-invoice manufacturer rebates, labels/promotional allowances or any other “soft money” received from supplier or freight carriers of Contracted Products. In order to allow verification of the foregoing commitment, DISTRIBUTOR agrees to provide documentation substantiating the Cost of items DISTRIBUTOR purchases from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to the manufacturers of non-proprietary Products. The Cost of Contracted Products will not be reduced by discounts for cash or prompt payment available to DISTRIBUTOR, breakage allowances or by backhaul revenue. Fuel or other transportation surcharges indicated on the manufacturer’s or supplier’s invoice or on freight invoices will increase Cost.

The invoice format to be used by DISTRIBUTOR will be approved by COMPANY and will contain separate lines showing subtotals for various Product categories, applicable taxes, the date of the ACH debit and other summary line items as detailed elsewhere in this Agreement.

Partial case shipments (also known as “splits”) shall be permitted for the malt, maraschino cherries, chocolate sprinkles, assorted sprinkles in which individual units of such Products are separately packaged within each case. Notwithstanding anything else contained in this agreement to the contrary, the Markup for the following items will be limited to [CONFIDENTIAL] (19): maraschino cherries, medium spoons, straws, chocolate sprinkles and assorted sprinkles. The Markup for taster spoons and water will be limited to [CONFIDENTIAL] (20)

Notwithstanding anything else contained herein to the contrary and for the entire term of this Agreement, COMPANY and DISTRIBUTOR agree that the Markup will be reduced by seven

(19)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

(20)     Confidential treatment has been requested for the redacted portion. The confidential, redacted portions have been filed separately with the SEC.

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($.07) cents per case for all Products except for those listed in the preceding paragraph, in the event that DISTRIBUTOR ceases providing distribution services to the Stores located in Huron and Pierre, South Dakota or in the event that DISTRIBUTOR delivers Products for these two Stores to a third party distributor located in the Territory. In the event that DISTRIBUTOR does deliver these Products to a third party distributor, then the Markup will be the same as for all other Stores with the exception that the delivery surcharges called for in Section 5 of this Agreement will not apply.

4.02                 “Cost” for Contracted Products/True-Up Methodology - In the case of Contracted products, COMPANY agrees to notify DISTRIBUTOR as soon as practical af